Nittala Lakshminarasimhamurti And Others v. Meduri Venkata Jogisomayajulu And Others S

(Delivered by Burn J.)

These are cross-appeals from the order of the learned Subordinate Judge of Rajahmundry passed on E.A No. 626 of 1935 in O.S No. 68 of 1919. The decree-holders in this execution petition sought to recover from the judgment-debtors four sums of money: costs in O.S No. 68 of 1919 ordered by the decree of the Court to be paid by the guardian of the first defendant to plaintiffs 2 to 4 amounting to Rs. 666-8-0, interest on the same sum from 16th October 1923 to 15th September 1935 at 6 per cent per annum amounting to Rs. 476-8-9, the costs decreed in A.S No. 134 of 1924 on the file of this High Court amounting to Rs. 465-1-6 and costs in C.M.P No. 2774 of 1927 on the file of this High Court amounting to Rs. 402-13-0. The learned Subordinate Judge held that the legal representatives of the first judgment-debtor Vedula Ramakrishnamma should be added in the execution petition and that execution should proceed against any self-acquired properties of the first judgment-debtor in their hands for the recovery of the first two items, namely, Rs. 666-8-0 and interest Rs. 476-8-9. He directed that with regard to the remaining two sums all the joint family property of the respondents should be held liable. The judgment-debtors have appealed with regard to the last two items. Their contention is that the costs of the appeal (A.S No. 134 of 1924) should have been dealt with in the same way as the costs of the suit and interest upon it and that in so far as the costs in the C.M.P are concerned, only the estate of the first appellant should be made liable. In C.M.A No. 24 of 1938 the transferee decree-holders have appealed contending that the legal representatives of the 1st judgment-debtor should also be held liable for the costs of the suit and the interest—items 1 and 11 referred to above.

Dealing with appeal No. 24 of 1938 first, we think the contention raised on behalf of these appellants is quite untenable. It was shown that Vedula Ramakrishnamma in defending O.S No. 68 of 1919 on behalf of his minor daughter Nittala Yellamma set up a false will. It was for that reason that the Court ordered him personally to pay the costs of the plaintiffs although he himself was not a party to the suit. We think that it is quite clear that this debt is properly described as avyavaharika. As the learned Subordinate Judge has said, although he might have felt responsible for defending the suit on behalf of his minor daughter, he was certainly under no obligation to fabricate a will in order to do so and all the costs that he incurred in prosecuting a defence of this kind must be said to be a debt tainted with illegality or immorality for which his sons cannot be held liable.

With regard to the costs of the appeal we agree with the learned Counsel for the appellants in C.M.A No. 416 of 1937 that they must be dealt with in the same way as the costs of the suit. It was urged on behalf of the respondents (decree-holders) that whatever might be said about the costs of the suit, the costs incurred by Vedula Ramakrishnamma in prosecuting the appeal could not be said to be a debt tainted with illegality or immorality. We find, however, on referring to the grounds of appeal (the appeal was preferred jointly by Vedula Ramakrishnamma as the 2nd defendant and his daughter as the 1st defendant) that the allegations made are that the lower Court was wrong in its decision that the will was a fabrication. It is quite clear therefore that in prosecuting the appeal Vedula Ramakrishnamma was acting in the same illegal and immoral way as he had done in conducting the defence on behalf of his minor daughter. There was no separate ground taken in A.S No. 134 of 1924 that the order of the trial Court directing the guardian to pay the costs was in itself illegal.

With regard to the 4th item the 1st appellant in C.M.A No. 416 of 1937 was the only person interested in C.M.P No. 2774 of 1927. That petition was filed on his behalf by his father to bring him on record as the legal representative of his sister the 1st appellant in A.S No. 134 of 1924. The order of the Court was that the petition be dismissed with costs of respondents 1 and 3. The liability for this falls, as the learned Subordinate Judge has said, upon the estate of the minor Nittala Lakshminarasimhamurti but his brothers are in no way concerned in that and the joint family property in their hands cannot be made liable for this item. The learned Subordinate Judge appears to have overlooked this point when he made all the joint family property liable for the costs decreed in C.M.P No. 2774 of 1927.

The result therefore is that C.M.A No. 416 of 1937 is allowed with costs throughout and that C.M.A No. 24 of 1928 is dismissed with costs.

(Note). It should be made clear in the decree that the item of Rs. 465-1-6 (costs in the appeal) will be recoverable from any self acquired properties of Vedula Ramakrishnamma in the hands of any of the judgment-debtors).

Orders accordingly.

N.R.R